IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

JONATHAN DUBOIS, ) ) Plaintiff, ) ) vs. ) Case No. CIV-19-1080-PRW ) CITY OF BLANCHARD, a municipality; ) MATTHEW HAINES, in his individual ) capacity; STACEY WHITE, in his ) individual capacity; JOE BEILOUNY, in ) his individual capacity; SEAN EATON, in ) his individual capacity; and JOHN DOES ) 1-10, ) ) Defendants. )

ORDER Defendant City of Blanchard asks the Court to dismiss two claims brought against it by Plaintiff for failure to state a claim upon which relief can be granted (Dkt. 9). It argues, pursuant to Fed. R. Civ. P. 12(b)(6), that (1) Plaintiff’s Burk tort claim must be dismissed because he does not assert that he was an at-will employee and (2) Plaintiff’s punitive damages claim must be dismissed because such damages are not recoverable against a municipality. Standard of Review In reviewing a Fed. R. Civ. P. 12(b)(6) motion to dismiss, all well-pleaded allegations in the complaint must be accepted as true and viewed “in the light most favorable to the plaintiff.”1 While a complaint need not recite “detailed factual allegations,” “a plaintiff’s obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action

will not do.”2 The pleaded facts must establish that the claim is plausible.3 Burk Tort Claim Defendant City contends that Plaintiff’s Burk tort claim must be dismissed because Plaintiff’s claim that he had a property interest in his continued employment precludes him from claiming that he was an at-will employee, and only at-will employees can pursue a

Burk claim.4 Plaintiff responds that he pleaded that he had a property interest in his continued employment and also that he was an at-will employee because there is a question of fact as to the status of his employment.5 Moreover, asserts Plaintiff, the Federal Rules of Civil Procedure permit alternative pleading at this stage of litigation since discovery has not yet occurred.6

The Court agrees with Plaintiff that such alternative pleading is permitted at this stage of litigation,7 and taking his allegations as true and viewed in the light most favorable

1 Alvarado v. KOB-TV, L.L.C.,

,( 1215 (10th Cir. 2007) (quoting David v. City & County of Denver,

(10th Cir. 1996)). 2 Bell Atl. Corp. v. Twombly,

(2007) (internal quotation marks and citations omitted) (alteration in original). 3

4 Mot. for Partial Dismissal of Def. City of Blanchard (Dkt. 9) at 4. 5 Pl.’s Resp. to Def. City of Blanchard’s Mot. for Partial Dismissal (Dkt. 16) at 3. 6

at 67. 7 See Fed. R. Civ. P. 8(d). to Plaintiff, he has stated the at-will employee element of a Burk tort claim. Defendant City’s request to dismiss this claim is accordingly denied. Punitive Damages Defendant City next argues that Plaintiffs punitive damages claim must be dismissed because such damages are not recoverable against a municipality.® Plaintiff concedes this point,’ so his claim for punitive damages against Defendant City is dismissed with prejudice. Conclusion The motion (Dkt. 9) is thus GRANTED IN PART AND DENIED IN PART. Defendant City’s motion to dismiss Plaintiff's Burk tort claim is DENIED, and its motion to dismiss Plaintiff's punitive damages claim against Defendant City only is GRANTED and DISMISSED WITH PREJUDICE. IT IS SO ORDERED this 15th day of June, 2020.

Ben PA ant R. wae UNITED STATES DISTRICT JUDGE

8 Mot. for Partial Dismissal of Def. City of Blanchard (Dkt. 9) at 5-6. Pl.’s Resp. to Def. City of Blanchard’s Mot. for Partial Dismissal (Dkt. 16) at 8.